The Forgotten Ninth Amendment

July 29, 1991

Interestingly, the first real controversy regarding Judge Clarence Thomas' nomination to the Supreme Court is not about his opposition to affirmative action or even to his presumed extreme conservatism in general, but to his apparent belief in "natural rights." He has referred approvingly to this concept in speeches and articles.

Advocates generally argue that such rights are superior to man-made rights -- and are the endowment of God or a "creator," as the Declaration of Independence put it. Such rights are therefore both extra-constitutional and religious or theological. Many liberals and conservatives are nervous about this sort of legal thought. Robert Bork, whose conservatism was so extreme in the view of a majority of senators that they voted down his nomination to the Supreme Court, has scoffed at the notion that judges may follow natural law. He believes individual rights not specified in the Bill of Rights are not rights at all.

There is a way for judges to recognize unspecified individual rights without resorting to religion or any other source outside the Constitution. The Bill of Rights is specific only through the first eight amendments. The Ninth Amendment says, "The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Judge Thomas and Mr. Bork both reject this as grounds for rights not specified. So far as we know, no decision by the Supreme Court has ever relied on the Ninth Amendment. But a growing number of lawyers, elected officials and judges have cited it in recent years.

Consider the Supreme Court case establishing the right to privacy (nowhere mentioned in the Constitution or Bill of Rights), which paved the way for Roe v. Wade's striking down of anti-abortion laws. A concurring opinion in this case offered to Americans who are fearful of mixing church and state a secular foundation for the recognition of rights very much like those Judge Thomas has cited. This opinion said the Ninth Amendment protects "fundamental personal rights" not specified in the first eight amendments, which are derived not from nature or a creator, but from "the [national] traditions, [collective] conscience and experiences and principles which lie at the base of our civil and political institutions."

The new-found interest in the Ninth Amendment appears to be more a liberal than a conservative phenomenon, but Justice David Souter said in his confirmation hearings that he believed the amendment does protect unspecified rights. Senate Judiciary Committee Chairman Joseph Biden -- who does read the Ninth Amendment expansively -- should press Judge Thomas to explain why he believes (if he does) that rights of Americans not specified in the Constitution can be found in religious or philosophical concepts, but not in the Bill of Rights' own Ninth Amendment.